NCAA seeks dismissal of civil suit filed by Paterno family and supporters

A sign reading 'We won't forget' hangs from a tree at the site where former Penn State college football coach Joe Paterno's statue once stood in State College, Pa. on Monday. Monday marked the one-year anniversary of the date the statue was removed in the aftermath of the Jerry Sandusky child sex abuse scandal.

Jasmine Goldband | Tribune-Review

Karen Peetz, President of BNY Mellon speaks during a Robert Morris University Bayer Center for Nonprofit management program titled, 'Strength in Governance: Real Life Examples from a Courageous Board Leader,' Downtown Tuesday, July 23, 2013.

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The NCAA asked the Centre County Common Pleas Court on Tuesday to throw out a lawsuit brought by relatives of late Penn State football coach Joe Paterno, arguing his family and other plaintiffs lack legal standing in the case.

Five university trustees, four faculty members and about a dozen others joined the Paternos in May to argue the NCAA broke its rules in imposing unprecedented sanctions against the school.

The school administration agreed last July to a consent decree affirming the punishment, which includes a $60 million fine, strict caps on football scholarships and the erasure of 111 football wins accumulated under Paterno, who died Jan. 22, 2012.

“Penn State leaders determined the consent decree was the best course for the university and its community to put the devastating Sandusky affair behind them,” NCAA Chief Legal Officer Donald Remy wrote in a prepared statement, referring to the Jerry Sandusky child sexual abuse scandal. “Those who continue to challenge Penn State's right to make that decision only prolong the pain and delay the recovery.”

The university itself is not a party in the Paterno litigation and did not comment on Tuesday evening. Boston attorney Paul V. Kelly, who represents the plaintiffs, said he expected the NCAA reaction and “will be filing a detailed response to these claims in the coming weeks.”

Among its arguments, the NCAA said the Paternos and other plaintiffs do not have legal standing because they were not sanctioned. Further, the NCAA noted the plaintiffs are worried largely about an investigation by former FBI Director Louis Freeh, whose study identified deep cultural problems and leadership failures to stop Sandusky's years-long abuse of boys.

Freeh outlined his findings in a report ordered by the school trustees, a document that became a foundation for the NCAA sanctions. But “the NCAA did not commission the Freeh report nor had any role in it,” Remy wrote.

Independent observers said the objections appear somewhat similar to the NCAA's defense in an earlier lawsuit brought by Gov. Tom Corbett, who sought separately to overturn the sanctions. U.S. Middle District Judge Yvette Kane dismissed that suit on June 6.

“I can't predict what the court is going to do, but the NCAA has had a very strong track record in fending off such suits,” said Michael Buckner, a Pompano Beach, Fla., attorney who specializes in NCAA matters.

He said the question of the plaintiffs' legal standing will be a linchpin, with the Paternos facing a high hurdle.

“As Penn State declines to participate in any legal proceedings, it's going to be very hard for any parties to get any kind of legal traction,” Buckner said. “The NCAA does have the upper hand legally.”

Earlier Tuesday, newly elected Penn State trustees Edward “Ted” B. Brown III, Barbara L. Doran and William F. Oldsey said in a prepared statement that they support the action against the NCAA. They argued acceptance of the sanctions “would not be in the long-term interest of this great university and the broader Penn State community.”

The trio joined the 32-member university board on July 1.

“We want to show we represent a lot of people concerned with how this thing is handled,” said Brown, a State College businessman. He declined to speculate about whether he would join the pending suit as a listed plaintiff.

More than 300 former athletes and coaches at the school announced their support in June for the lawsuit.

Trustee Karen B. Peetz, a former board chairwoman, said late Tuesday she had not seen the NCAA's response and declined to comment. In an earlier presentation at the Bayer Center for Nonprofit Management, Downtown, she said the school had to take a responsible stand and reform its culture.

“Once I became board chair (in January 2012), I became hellbent on accepting responsibility,” said Peetz, who was board chairwoman when Penn State accepted the NCAA sanctions.

Sandusky, 69, a former assistant football coach at Penn State, is serving a 30- to 60-year sentence for abusing 10 boys over 15 years, often on school property. Three former administrators are fighting criminal charges that they helped cover up his abuse. A Centre County jury convicted Sandusky in June 2012.

Adam Smeltz is a staff writer for Trib Total Media. He can be reached at 412-380-5676 or asmeltz@tribweb.com.

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